Here is the key paragraph from the NMA decision explaining why the "guidance" at issue was merely guidance and not a rule:

"As EPA acknowledged at oral argument, 'The Guidance has no legal impact. . . .' The Final Guidance does not tell regulated parties what they must do or may not do in order to avoid liability. The Final Guidance imposes no obligations or prohibitions on regulated entities. . . . The Final Guidance may not be the basis for an enforcement action against a…

Whatever one believes about the quality of the policy informing the CFTC's Guidance, the process (or absence thereof) should be regarded as unacceptable. Government agencies diminish the moral force of government regulation when they seem to circumvent the procedures by which government agencies are "required" to act. Further, one cannot argue that the CFTC was "forced" into a procedural end-around by its inability to adopt rulemaking over the resistance of dissidents. Given the rules of the…

Here are the key points in the Barnier statement:

"I intend to propose shortly that the European Commission adopt 'equivalence' decisions that will allow CCPs from five countries outside the EU – Japan, Singapore, Australia, Hong Kong and India – to clear EU derivatives trades. This will be done in full deference to the rules and supervisory systems of those countries. . . . If the CFTC also gives effective equivalence to third country CCPs, deferring to strong and…

Chair White continues a reasonable and measured approach as she orders an agency review of the markets after the publicity frenzy over Flash Boys: A Wall Street Revolt. With regard to the direction of the SEC's review of the equity markets, it will be interesting to see the biases between exchange trading and other forms of intermediation. As to trading in the fixed income markets, it seems likely that very significant additional regulation is on the horizon. Financial regulatory…